TN Supreme Court Clarifies Scope of Review for Telephonic Testimony in Divorce: Kelly v. Kelly

Knoxville child custody lawyersFacts: A more detailed summary of the underlying facts of this case and my analysis of the 2-1 decision from the Court of Appeals can be found here in my blog post on that opinion.

The short version is the trial court in this divorce designated Mother as the primary residential parent of Son and Daughter. In so doing, the trial court heard telephonic testimony from a school counselor. The Court of Appeals — in a 2-1 decision — reversed the trial court after finding the school counselor’s testimony was not credible. The Court of Appeals then substituted its judgment for the trial court’s and designated Father as the primary residential parent of Son while Mother remained the primary residential parent of Daughter.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals.

This case presented an issue of first impression regarding the proper standard of review of the trial court’s decision regarding the credibility and weight that should be given to witness who testifies by telephone.

When it comes to live, in-court witnesses, appellate courts should afford trial courts considerable deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are uniquely positioned to observe the demeanor and conduct of witnesses. Appellate courts should not re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing evidence to the contrary. In order for evidence to be clear and convincing, it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Whether the evidence is clear and convincing is a question of law that appellate courts review de novo without a presumption of correctness.

On the other hand, appellate courts are not required to give similar deference to a trial court’s findings of fact based on documentary evidence such as depositions, transcripts, or video recordings. When findings are based on documentary evidence, an appellate court’s ability to assess credibility and to weigh the evidence is the same as the trial court’s. Accordingly, when factual findings are based on documentary evidence, an appellate court may draw its own conclusions with regard to the weight and credibility to be afforded that documentary evidence.

Tennessee law permits testimony by telephone in only a handful of narrowly drawn circumstances. Testimony in civil cases is generally governed by Tennessee Rule of Civil Procedure 43.01, which states:

In all actions at law or equity, the testimony of witnesses shall be taken pursuant to the Tennessee Rules of Evidence. Also, for good cause shown in compelling circumstances and with appropriate safeguards, the court may permit presentation of testimony in open court by contemporaneous audio-visual transmission from a different location.

In addition to live testimony, this rule contemplates the use of contemporaneous audio-visual (but not audio only) transmissions. And even then, good cause, compelling circumstances, and adequate safeguards must be established before testimony by video conferencing may be allowed.

There are important reasons why live, in-person testimony is more desirable than remote testimony. One frequently cited list explains that a witness’s personal appearance in court (1) assists the trier of fact in evaluating the witness’s credibility by allowing his or her demeanor to be observed first-hand; (2) helps establish the identity of the witness; (3) impresses upon the witness the seriousness of the occasion; (4) assures that the witness is not being coached or influenced during testimony; (5) assures that the witness is not referring to documents improperly; and (6) in cases where required, provides for the right of confrontation of witnesses.

After reviewing the record, the Supreme Court reasoned:

While we agree with [Father] that “telephonic testimony inhibits a trial court’s ability to gauge witness credibility,” we also believe that a trial court is better-situated to gauge the credibility of a telephonic witness than an appellate court. To the extent that the Court of Appeals majority rejected the weight the trial court ascribed to the counselor’s testimony solely because she testified by telephone, we find this lack of deference erroneous….

Affording the trial court the appropriate “considerable deference” in the weight it ascribes to witness testimony, we cannot conclude that clear and convincing evidence preponderates against any decision by the trial court to rely on the counselor’s testimony concerning [Son’s] life and performance in school. To the extent that the trial court found the guidance counselor to be a helpful and reliable witness, we leave that credibility determination undisturbed….

Although Tennessee law does not expressly provide for live trial testimony via telephone, we have determined that when such testimony occurs, it should be reviewed on appeal using the same deferential standard as live in-person testimony.

Applying this newly-articulated standard of review to the facts of the case, the Supreme Court said:

We find no evidence in this record that the trial court abused its discretion in designating [Mother] as [Son’s] primary residential parent….

In light of the trial court’s clearly articulated findings, we find no evidence that the court applied an incorrect legal standard, reached an illogical conclusion, or based its decision on a clearly erroneous assessment of the evidence…. The trial court applied the proper legal standards. Its custody ruling falls well within the spectrum of possible reasonable results. Granting the trial court the deference it deserves in ascribing credibility and weight to the witnesses’ testimony, we find no basis to overturn the trial court’s assignment of [Mother] as [Son’s] primary residential parent.

Accordingly, the Court of Appeals was reversed and the trial court’s judgment affirmed.

K.O.’s Comment: First, this is the outcome I predicted one year ago. So there’s that.

Second, Tennessee law only permits telephonic testimony in limited circumstances in family law matters. When telephonic testimony occurs, it is usually by agreement of the parties as a matter of convenience and/or expense reduction. So when in family law matters are you allowed to present a witness’s testimony by telephone in the absence of an agreement to do so?

  • Child support payment records: Tennessee Code § 24-7-121(d) permits telephonic testimony regarding payment records in child support cases;
  • Out-of-state witnesses in conservatorship or guardianship matters: Tennessee Code § 34-8-106(b) permits telephonic testimony from witnesses located in other states to testify by telephone in conservatorship or guardianship proceedings;
  • Incarcerated parents in termination of parental rights matters: Tennessee Code § 36-1-113(f)(3) permits an incarcerated parent or guardian to participate by telephone in a hearing to terminate parental rights;
  • Out-of-state witnesses in UIFSA matters: Tennessee Code § 36-5-2316(f) (2010) permits a witness located in another state to testify by telephone in cases under the Uniform Interstate Family Support Act; and
  • Out-of-state witnesses in UCCJEA matters: Tennessee Code § 36-6-214(b) permits a witness located in another state to testify by telephone in cases under the Uniform Child Custody Jurisdiction and Enforcement Act.

Absent the parties’ agreement in this case for the school counselor to testify by telephone, they could have deposed the witness and could even have deposed her by telephone. Tennessee Rule of Civil Procedure 32.01(3) authorizes courts to receive testimony by deposition when the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a). Tennessee Rule of Evidence 804(a)(6), in turn, provides that a witness in a civil action is unavailable when the witness is more than one hundred miles from the place of trial. Here, the guidance counselor in Brentwood was more than one hundred miles from Chattanooga, the place of trial. Additionally, Tennessee Rule of Civil Procedure 30.02(7) provides that, by stipulation of the parties or by court order, a deposition may be taken by telephone.

Kelly v. Kelly (Tennessee Supreme Court, September 10, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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